Tuesday, November 11, 2008

Keeping The Faith

Keeping The Faith

Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.

Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.

These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?

Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.

It does not matter what those who scoff say, justice was done last Friday.

No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.

The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.

Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.

The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.

The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.

Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.

Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.

(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)

We will have to wait further in order for many of us to sustain this faith.

We cannot completely write off that there are no interference from certain parties.

We need a few more cases that show signs of politicians involvement. These two cases final judgement, Anwar sodomy case and the Mongolian murder case will more or less indicate our faith in the judiciary.

But the general public have all the faith in you and your team. Whether you win or lose this case, we all know that you and your team have given your best performance.

Mr. Sarwar, I had just posted a comment on your blog on Malaysia Today. Never mind, since I can address you directly. I for one acknowledge you and your team's efforts. I was told you are a brilliant team. If I were the judge, with such sound arguments, I would have awarded the decision to you too. Kudos to the judge too for being so brave.I actually was watching you and your team standing quietly by the side on TV!

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.========================

Indeed Hope triumphed.Yes- everybody, except a few in authority, are happy with it.

While I agree with most of what you say, I cannot agree with you that it is a disservice to be sceptical of the judiciary helmed by tainted individuals amidst political manouverings.

In raising hopes high, I'd rather advocate caution - in that, new brooms do sweep well. More so when he has a point to prove, so as to win the hearts and minds.

While hope may be all we have at present (when all decency is lost among those who weild power), caution should be the order of the day.

This is just the beginning.The battle may be won, but a harder war looms ahead.And pirates don't give up the "right to loot" too easily ....

How others perceive it is not that important, what matter most is Justice is done. Whether or not the government will succeed to appeal the judgment later on is another story (of course right-minded people would not hope that's going to happen)

"The road ahead will be long. Our climb will be steep......we as a people will get there" - Barack Obama

Yes, we'll get there, sooner or later as the judgment indicates that there's still a hope for our judiciary system.

Sir, i believe every malaysian is thankful to you for your courage to fight for not just Raja Petra but the freedom and fundamental rights of every single Malaysian whose constitutionally protected rights have slowly been "eaten" up by the cruel and autocratic BN regime! thank you and if possible, please enter politics to fight for us in parliament! We need you, really!

Imtiaz, this is a zillion times more dramatic than theatre (indeed, I can already envisage that not too far down the line, somebody will be inspired to turn the entire Raja Petra affair into a gripping courtroom drama in the tradition of 'A Man For All Seasons' - and you & Art & Sree & Ashok & the rest of your fine team will be recruited as dialogue consultants or even get to play yourselves!) Thank you for doing the ROYAL job you & your team did, Imtiaz. I missed seeing you in action but from all reports you have earned yourself a permanent place in the Legal Hall of Fame. Heartiest congratulations - and I'm so proud to brag, "Malik Imtiaz Sarwar? Oh, he's an old friend of mine!" :-)

ya man, we do a disservice to ourselves for discarding the tiniest slivers of truth dealt us. for those too incredulous of the judgement thru long episodes of unfairness, lets say to them: no more the disbelief. time for a new mindset. lest we lose it by our own means.

Mr. MalikI'm a 50 year old ex-shipmaster.I saw you speak at RPK's trial in Shah Alam. I can only say that your performance was a scintillating piece of logic. No loud voices, no theatrics.........just plain logic and persuasion.Justice Helmy (brave man that he is) could not do otherwise than be swayed to your side of the argument. I commend you, young man, for being the professional that you are and for caring enough about the rest of us that you agreed to defend our dear RPK.

Faith is the substance of things hoped for, the evidence of things not seen ! What you and your entire team have had laboured in court thus far is just beyond mere words of thanks.

I beleive it is the satisfaction of knowing that no matter which case of trial that you represent, you sincerely give your best. In doing so, you have set such a high benchmark for many others to follow suit. To look beyond the political minefield of race, religion and ketuanan concept.

Use your given talent to defend and to argue in court for the many that are denied justice in view of some misguided interpretation of certain branch of laws. God bless you and may you be blessed with all that your heart desire.

On issues that really matter, I always appreciate and look forward to your balance of hard-hitting truths and plain common sense delivered with dignity, humility and humour. You stand for all that's fair and decent in these troubled times. For you and others who publicly struggle for the truth to emerge, just trying to get it and keep it together must be so tough. I am just one amongst many in this country who thank you for helping us all keep the faith.

Very well said. Ever since I saw you on Al-jazzera and how you handled KJ and Nazri, I have been reading your blog. Coming to think of it, I know understand why my uncle, Mr.Sreesanthan, whom you should know holds such high regards of you. Hope you can keep up the great articles. Have a good day. Cheers!

You got "the hearing you wamted" because you got the judgement you wanted. you are just a bloody humbug, nothing else. for if the decision had been otherwise you would crowing shit from the arfters about how justice was skewed against you etcetera. heraing your ilk crow about this "rubbish" of a judgement makes want to puke! Excuse me.....